Criminal Procedure Rule 36: Case Management

(Applicable to District Court and Superior Court)

(1) Order of Priorities. The trial of defendants in custody awaiting trial and defendants whose pretrial liberty is reasonably believed to present unusual risks to society shall be given preference over other criminal cases.

(A) District Court. The court shall determine the sequence of the trial calendar.

(B) Superior Court. The court shall determine the sequence of the trial calendar after cases are selected for prosecution by the district attorney.

(b) Standards of a Speedy Trial. The time limitations in this subdivision shall apply to all defendants as to whom the return day is on or after the effective date of these rules. Defendants arraigned prior to the effective date of these rules shall be tried within twenty-four months after such effective date.

(1) Time Limits. A defendant, except as provided by subdivision (d)(3) of this rule, shall be brought to trial within the following time periods, as extended by subdivision (b)(2) of this rule:

(A) during the first twelve month period following the effective date of this rule, a defendant shall be tried within twenty-four months after the return day in the court in which the case is awaiting trial.

(B) during the second such twelve-month period, a defendant shall be tried within eighteen months after the return day in the court in which the case is awaiting trial.

(C) during the third and all successive such twelve-month periods, a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial.

(D) If a retrial of the defendant is ordered, the trial shall commence within one year after the date the action occasioning the retrial becomes final, as extended by subdivision (b)(2) of this rule. The order of an appellate court requiring a retrial is final upon the issuance by the appellate court of the rescript. In the event that the clerk of the appellate court fails to issue the rescript within the time provided for in Massachusetts Rule of Appellate Procedure 23, retrial shall commence within one year after the date when the rescript should have issued.

If a defendant is not brought to trial within the time limits of this subdivision, as extended by subdivision (b)(2), he shall be entitled upon motion to a dismissal of the charges.

(2) Excluded Periods. The following periods shall be excluded in computing the time within which the trial of any offense must commence:

(A) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to:

(i) delay resulting from an examination of the defendant and hearing on his mental competency or physical incapacity;

(ii) delay resulting from a stay of the proceedings due to an examination or treatment of the defendant pursuant to section 47 of chapter 123 of the General Laws;

(iii) delay resulting from a trial with respect to other charges against the defendant, which period shall run from the commencement of such other trial until fourteen days after an acquittal or imposition of sentence;

(vi) delay resulting from proceedings relating to transfer to or from other divisions or counties pursuant to rule 37;

(vii) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.

(B) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness. A defendant or an essential witness shall be considered absent when his whereabouts are unknown and he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. A defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.

(C) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.

(D) If the complaint or indictment is dismissed by the prosecution and thereafter a charge is filed against the defendant for the same or a related offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge.

(E) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is no cause for granting a severance.

(F) Any period of delay resulting from a continuance granted by a judge on his own motion or at the request of the defendant or his counsel or at the request of the prosecutor, if the judge granted the continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial. No period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subdivision unless the judge sets forth in the record of the case, either orally or in writing, his reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.

(G) Any period of time between the day on which a defendant or his counsel and the prosecuting attorney agree in writing that the defendant will plead guilty or nolo contendere to the charges and such time as the judge accepts or rejects the plea arrangement.

(H) Any period of time between the day on which the defendant enters a plea of guilty and such time as an order of the judge permitting the withdrawal of the plea becomes final.

(3)Computation of Time Limits. In computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.

(c) Dismissal for Prejudicial Delay. Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.

(1)General Provisions. A person serving a term of imprisonment either within or without the prosecuting jurisdiction is entitled to all safeguards afforded him under subdivisions (a), (b), and (c) of this rule in the conduct of any criminal proceeding, subject to the limitations stated herein.

(2)Persons Detained Within the Commonwealth. Any person who is detained within the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding is entitled to be tried upon any untried indictment or complaint pending against him in any court in this Commonwealth within the time prescribed by subdivision (b) of this rule.

(3) Persons Detained Outside the Commonwealth. Any person who is detained outside the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding, and against whom an untried indictment or complaint is pending within the Commonwealth shall, subsequent to the filing of a detainer, be notified by the prosecutor by mail of such charges and of his right to demand a speedy trial. If the defendant pursuant to such notification does demand trial, the person having custody shall so certify to the prosecutor, who shall promptly seek to obtain the presence of the defendant for trial. If the prosecutor has unreasonably delayed (A) in causing a detainer to be filed with the official having custody of the defendant, or (B) in seeking to obtain the defendant's presence for trial, and the defendant has been prejudiced thereby, the pending charges against the defendant shall be dismissed.

(e)Effect of a Dismissal. A dismissal of any charge ordered pursuant to any provision of this rule shall apply to all related offenses.

(1)District Court. The First Justice of each division of the District Court shall be advised periodically by the clerk of the status of all cases which have been pending in that court for six months or longer. The report shall be transmitted to the Administrative Justice for the District Court Department.

(2) Superior Court. The Administrative Justice for the Superior Court Department shall be notified by the clerk for each county of the status of all cases which have been pending in that court for six months or longer within the following time periods:

(A) for the first twelve-month period following the effective date of this rule, sixty days after the last day of a sitting;

(B) for the second such twelve-month period, forty-five days after the last day of a sitting;

(C) for the third and all successive such twelve-month periods, thirty days after the last day of a sitting.

Such notice shall include the number of the case, the name of the defendant, the offense charged, the name of defense counsel, if any, and the name of the prosecutor.

The Supreme Court held in Barker v. Wingo
, 407 U.S. 514 (1972), that a defendant’s constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the defendant and the prosecution are weighed.

[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case....

Barker v. Wingo, supra at 522. The Court refused to objectify a “fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial,” 407 U.S. at 521, choosing not to engage in legislative or rulemaking activity.

We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.

407 U.S. at 523 (Emphasis supplied).

Since the Supreme Court’s decision in Klopfer v. North Carolina
, 386 U.S. 213 (1967), wherein the speedy trial guarantee secured by the sixth amendment was made applicable to and enforceable against the states by virtue of the due process requirements of the fourteenth amendment, three-quarters of the states have enacted, either by court rule or statute, speedy trial provisions. This would seem to indicate that the majority of states have experienced difficulty in affording uniformly fair justice on a case-by-case basis and are seeking to objectify the right so as to ease its application. The Supreme Court in Barker does not deny the states this prerogative so long as its exercise is consistent with constitutional standards. 407 U.S. at 530 n. 29.

While Rule 36 does quantify the time limits beyond which a defendant’s speedy trial rights shall be deemed to have been denied, it is, as its title makes clear, primarily a management tool, designed to assist the trial courts in administering their dockets.

Incarcerated defendants under existing Massachusetts law are accorded certain rights. This subdivision is first a general restatement of the principles underlying prior law, rather than a substitute for former statutes, and secondly an aid in the continued implementation of the policy of former G.L. c. 277, § 72, which provided for the release of a defendant from pretrial detention if he had not been tried within the criminal session next following six months of incarceration.

Additionally, the preference given to the trial of criminal defendants held in jail for offenses not punishable by death or life imprisonment over the trial of civil cases by G.L. c. 212, § 29
is to retain its vitality though not expressly adopted by this rule. See G.L. c. 212, § 24
. See ABA Standards Relating to Speedy Trial, Standard 12-1.1(a) (2d ed. Approved Draft, 1978), Fed.R.Crim.P. 50(a).

Subdivision (a)(2). This is modeled after Standard 12-1.2 of the ABA Standards Relating to Speedy Trial, supra, and is consonant with the policy of G.L. c. 278, § 1
in that the trial court is given ultimate control over the calendar. See Rules of Criminal Procedure (U.L.A.) rule 721(a) (1974). The guiding principle behind this section was enunciated by the Eighth Circuit:

The government and, for that matter, the trial court are not without responsibility for the expeditious trial of criminal cases. The burden of trial promptness is not solely upon the defense.

(a)(2)(A). In District Court jury-waived sessions, the court is to prepare and control the trial lists consistently with prior practice.

(a)(2)(B). General Laws c. 278, § 1
requires the district attorney to submit a list to the court of defendants to be tried at each sitting of the Superior Court, and it states that the cases will be tried in the order of the list unless otherwise ordered by the court.

Practice remains unchanged by this rule--the district attorneys are to place cases on the list in the order of priority they believe appropriate; the court may re-order arrangement of the list once it is submitted--but this procedure is extended to District Court jury sessions. General Laws c. 218, § 26A
(St.1978, c. 478, § 188) provides for a jury trial in the first instance of all charges over which the District Court has original jurisdiction. If a defendant elects not to waive jury trial, or, having waived that right, claims an appeal to a jury session after conviction, G.L. c. 218, § 27A(g)
(St.1978, c. 478, § 189) mandates that a District Attorney shall appear and prosecute the case. Further, G.L. c. 278, § 27A(e) provides that District Court jury sessions shall proceed in accordance with jury trials in the Superior Court. Therefore, subdivision (a)(2)(B) is to be read to empower the District Attorney to select those cases which are to be placed on the District Court jury session trial list. General Laws c. 278, § 1
establishes burdens on the prosecutor who is to keep current the list of cases to be tried and on the court which is to have the ultimate responsibility for the timely trial of those cases. See ABA Standards Relating to the Function of the Trial Judge, § 3.8(a) (Approved Draft, 1972). Practice under this rule will aid in the effective implementation of the speedy trial guarantee for there is a periodic check by the court on the prosecutor. Subdivision (f), infra.

Subdivision (b). General Laws c. 277, § 72 formerly provided for trial within six months after demand by an incarcerated defendant. This subdivision is an expansion of that statutory right, ultimately securing to all defendants the right to trial within twelve months after the filing of charges. Subdivision (b) is intended to insure that a defendant is not denied that right by providing for the dismissal of the charges for undue delay in bringing the defendant to trial.

The effect of this subdivision is not only to establish a specific time limit for commencement of trial, but also to shift the burden of proof concerning a deprivation of the defendant’s right to trial within twelve months. The constitutional protection puts the burden on the defendant to show that the delay was undue and to his prejudice, whereas under this rule, once a twelve-month lapse has been shown, the burden shifts to the prosecutor to explain the delay.

General Laws c. 277, § 72 provided that a defendant held in custody upon an indictment had the right to be released on his own recognizance if not brought to trial by the time of the court’s sitting next after six months from his commitment. General Laws c. 277, § 72A gave an incarcerated defendant the right to be tried on pending charges within six months after his application for a speedy trial or the charges would be dismissed. Those statutes were designed to alleviate hardships imposed upon particular defendants by pretrial delay. This subdivision is founded upon the premise that all defendants are liable to suffer from undue delay and that a definite time limit should be made available to them on an equal basis.

Subdivision (b)(1). Unlike former G.L. c. 277, § 72A, this subdivision is phrased so that only a trial upon charges against the defendant will satisfy the requirements of this rule. General Laws c. 277, § 72A required either a prompt “trial or other disposition thereof” (emphasis supplied), thus permitting a defendant’s demand to be satisfied by other than a trial upon the charges. Commonwealth v. Fields
, 371 Mass. 274, 280 (1976); Commonwealth v. Stewart
, 361 Mass. 857 (1972) (Rescript); Commonwealth v. Royce
, 358 Mass. 597, 599 (1971); Commonwealth v. Ambers
, 4 Mass. App. Ct. 647 (1976); Commonwealth v. Anderson
, 6 Mass. App. Ct. 492 (1978). This change is intended to offer a defendant relief from pending charges and their attendant burdens, thereby giving substance to the speedy trial concept. A dismissal of charges on other grounds, a disposition of the charges by plea, or a filing of the case, of course, vitiates any need for trial, and in such an instance the rule does not apply.

For purposes of this rule, a trial is deemed to have commenced when jeopardy attaches. “In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn.... In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” Serfass v. United States
, 420 U.S. 377, 388 (1975). Accord Commonwealth v. Ludwig
, 370 Mass. 31, 33 (1976). See Commonwealth v. Brandano
, 359 Mass. 332, 334-35, 269 N.E.2d 84 (1971); 30 MASS.PRACTICE SERIES (Smith) § 563 at 290 (1970). If neither of these stages of prosecution has been reached within twelve months after the return day in the court in which the case is pending, the charges must be dismissed upon motion of the defendant. The mandatory sanction for failure to comply with the twelve-month time limit is dismissal of the charges, such dismissal to be a bar to any subsequent prosecution for the same offense or any related offenses, whether by later complaint in the District Court or indictment in the Superior Court. Commonwealth v. Fields
, 371 Mass. 274 (1976); Commonwealth v. Ludwig, supra, at 35; subdivision (e), infra.

Under this rule, the right to a speedy trial attaches upon “the return day in the court in which the case is awaiting trial,” that is, the date on which “a defendant is ordered by summons to first appear or, if under arrest, does first appear ... to answer to the charges....” Mass.R.Crim.P. 2(b)(15). Therefore, if a defendant is bound over to the Superior Court after a probable cause hearing (Mass.R.Crim.P. 3[c] ) or the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court’s jurisdiction (Mass.R.Crim.P. 3[e]), the time limits of this rule begin anew upon the return day in the Superior Court. See ABA Standards Relating to Speedy Trial, Standard 12-2.2 (2d ed., Approved Draft, 1978); Rules of Criminal Procedure (U.L.A.) Rule 722(d) (1974).

As to re-trials, the right accrues when the certainty of that trial is established, e.g., by a judicial order for a new trial.

Subdivision (b)(1)(D). As originally drafted, the Rule left some ambiguity as to when this condition was satisfied in practice. See Commonwealth v. Levin
, 390 Mass. 857, 860 n. 4 (1984) and Commonwealth v. Bodden
, 391 Mass. 356, 357-58 (1984). A 1996 amendment settled this issue by declaring that a retrial order is final upon the issuance by the appellate court of the rescript or, if the clerk failed to issue the rescript as required, when it should have issued.

Under prior cases in which the Barker v. Wingo sixth amendment analysis was applied, absent a showing of culpability on the part of the Commonwealth in delaying trial, the burden was on the defendant to demonstrate that the Commonwealth unreasonably caused prejudicial delay. Commonwealth v. Gilbert
, 366 Mass. 18, 22 (1974). Accord Commonwealth v. Campbell
, 5 Mass.App.Ct. 571 (1977); Commonwealth v. Burhoe
, 3 Mass.App.Ct. 590, 594 (1975); Commonwealth v. Jackson
, 3 Mass.App.Ct. 511, 517 (1975). Under this rule, however, no demonstration of prejudice is necessary (except under subdivision [c], infra); once the defendant has established a prima facie case for dismissal--i.e., that twelve months have elapsed since the return day--the burden is on the Commonwealth to establish justification for the delay. The rule requires the court to dismiss the charges (rather than making the decision discretionary and dependent upon a balancing of all relevant considerations) unless an explanation is deemed sufficient to excuse the delay.

Under this subdivision, the court is given the discretion to consider and determine whether a proffered explanation for delay is a valid excluded period. But, once it is determined that a period of delay is within the contemplation of this subdivision, that period shall be excluded from computation of the twelve-month limit. The rationale underlying this subdivision is that the Commonwealth should not be penalized when the defendant elects to avail himself of those procedures which are certain to result in delay, or when the causes for delay are beyond its control.

(b)(2)(A)(i). This subdivision excludes delay due to a mental or physical examination of the defendant to determine his competency or physical capacity to stand trial and the resultant hearing on the matter. This delay is a common occurrence and often essential to a fair trial. See Commonwealth v. Boyd
, 367 Mass. 169, 178-179 (1975); Commonwealth v. Rise
, 7 Mass.App.Ct. 106 (1979). It is intended that the excluded period shall begin on the date the order for examination is given and shall extend until such date as the court finds the defendant mentally competent or physically able to stand trial. The court’s finding should be made within 30 days after receipt by the court of the examiner’s report ( [b][2][A][vii], infra) and the excludable period shall continue until such finding is made. It should be noted that the actual time period under (b)(2)(A)(i) may be extended by (b)(2)(C) to exclude any delay resulting from the fact that the defendant is found mentally incompetent or physically unable to stand trial. Fairness requires that a balance be struck between the defendant’s right to a speedy trial and those delays which of necessity accompany the examination process and which are beyond the control of the prosecution once the procedure has been ordered.

(b)(2)(A)(ii). It is intended by this subdivision that the excluded period shall begin when the defendant is advised by the court that he may request an examination to determine whether he is a drug dependent person pursuant to G.L. c. 123, § 47. The defendant is then given five days under § 47 in which to exercise his right to an examination. If an examination is not requested within the provided time limit, the excludable period shall terminate. However, if the defendant elects an examination, the period of time during which he is being examined shall be excluded. Once the defendant has requested examination, the court may, in its discretion, determine without an examination that the defendant would benefit from treatment and shall inform him that he may request treatment in a drug facility. The period of time during which the defendant is undergoing treatment for drug addiction will be excluded under (b)(2)(A)(ii). It is intended that the excluded period shall cover the entire period of delay generated by § 47 examination or treatment.

(b)(2)(A)(iii). This subdivision is intended to be inclusive of trials of the defendant on other charges in any state or federal court including the court where charges are then pending against the defendant. See Commonwealth v. Anderson
, 6 Mass. App. Ct. 492 (1978); Commonwealth v. Fasano
, 6 Mass.App.Ct. 325 (1978). The period shall run from the date such other trial begins and it is intended that the period shall conclude 14 days after a verdict of acquittal or imposition of sentence in the case. For the purpose of this subdivision, trial shall include the impanelling of the jury, hearings on motions deferred to the trial date, and any periods during which trial is suspended. The 14-day period following acquittal or sentencing is included in order to provide defense counsel with adequate preparation time for the second trial.

(b)(2)(A)(iv). It is intended that the excluded period under this subdivision run from the date the notice of appeal is filed until the rescript is received by the clerk of the lower court. The period covers any time during which interlocutory appeals are pending. See Commonwealth v. Underwood
, 3 Mass.App.Ct. 522, 528-29 (1975). Where delay is occasioned by the Commonwealth’s successful interlocutory appeal under Mass.R.Crim.P. 15, such delay does not prejudice the defense nor deny the defendant his right to a speedy trial. See United States v. Rosenbloom
, 511 F.2d 777 (D.C.Cir.1974).

The excludable period under this subdivision is intended to run from the date on which the request for hearing on the pretrial motion is filed, or, if no such request is filed, from the date the hearing is ordered, until the conclusion of the hearing.

(b)(2)(A)(vi). This subdivision provides that delay due to proceedings related to transfer under Mass.R.Crim.P. 37 shall be an excluded period. In cases transferred pursuant to Rule 37(a)(1) and (2), it is intended that the time limit begin to run on the date the clerk of the court in the transferee district receives the papers from the clerk of the court in the transferor district. In cases where the defendant moves for transfer of the case to another district pursuant to Rule 37(b), an excludable period shall run from the date of the hearing on the motion for transfer. If the motion is denied the period terminates at that time. If the motion is allowed and the case is subsequently transferred, the conclusion of the period will be determined by the court in that district to which the case is transferred. Under this rule, periods that are excluded are not restricted to the proceedings, directly related to transfer pursuant to Rule 37, but are intended to provide as well for delays caused by the transfer of papers from one district to another in transfer proceedings. This is to account for reasonable administrative delays while the court awaits the transfer papers.

(b)(2)(A)(vii). This subdivision provides for those delays which are necessary for the court to pass on proceedings concerning the defendant, exclusive of those periods for consideration of pretrial motions under (2)(A)(v). It is intended by this rule that the excluded period run during the time that the matter is actually under advisement until an order or ruling is entered, but in no event shall the period exceed 30 days. See 18 U.S.C. § 3161(h)(1)(G)
. It is not the intent of (2)(A)(vii) to preclude a continuance under Mass.R.Crim.P. 10 after the 30-day time limit is expired, but it is believed that the 30-day limit is reasonable in most cases. Where the matter under advisement is complex, the court may continue the case upon its own motion under (b)(2)(F), infra.

(b)(2)(B). If a defendant has made himself unavailable for trial for the purpose of avoiding prosecution, the interests of justice require that he not be allowed to subsequently claim violation of his right to a speedy trial. Commonwealth v. Underwood
, 3 Mass.App.Ct. 522, 527-28 (1975). Accord Commonwealth v. Jones
, 6 Mass.App.Ct. 750 (1978). Similarly, delays granted to allow the defendant or the Commonwealth to locate a key witness are justified and not properly chargeable against the Commonwealth. See e.g., Commonwealth v. Daggett
, 369 Mass. 790, 793-94 (1976); Commonwealth v. Boyd
, 367 Mass. 169, 178 (1975); Commonwealth v. Jones
, 6 Mass.App.Ct. 750 (1978); Commonwealth v. Alves
, 6 Mass.App.Ct. 572 (1978); Commonwealth v. Campbell
, 5 Mass.App.Ct. 571 (1977); Commonwealth v. Ambers
, 4 Mass. App. Ct. 647 (1976). An exclusion under this subdivision will be established by a party on motion for a continuance. It is intended that the excludable period run from the date the motion for a continuance is filed until the date when the defendant or witness is found by the court to have become available for trial. Mass.R.Crim.P. 10 provides that a continuance shall not be granted if a party fails to exercise due diligence to obtain an available witness for trial. Therefore, a party moving for a continuance under this subdivision should set forth with particularity the reasons why a continuance will enable him to obtain the witness and should state those facts as to which the witness is expected to testify. This will enable the court to make the necessary determination, on the facts presented, whether the unavailable witness is so “essential” as to warrant a continuance.

It is intended by this subdivision that a motion for a continuance on the ground of the absence of the defendant explain the facts of the defendant’s absence. Since such absence may occur at any time during the proceedings, it may become necessary for the court to determine how long the defendant has been absent and whether he is attempting to avoid prosecution or whether his whereabouts cannot be determined by due diligence. It is recommended practice under this rule that if a party learns or has reason to believe that a witness will be unavailable, and if the party does not wish to proceed to trial without that witness, that the party move for a continuance as far in advance of trial as is feasible. Counsel should inform the court and the adverse party promptly of the availability of the defendant or witness.

(b)(2)(C). Subdivision (b)(2)(A)(i) provides for an excluded period during examination and hearing on the defendant’s competency or ability to stand trial. It is intended that if the court should find the defendant unable to stand trial, a new period will begin under this subdivision, such excluded period to conclude upon a court finding that the defendant is competent and able to stand trial.

(b)(2)(D). This subdivision provides for an excluded period when the prosecution nol prosses the charges pending against the defendant pursuant to Mass.R.Crim.P. 16 and subsequently brings new charges for the same offense. Only the time period during which there are no charges pending against the defendant is to be excluded from the twelve-month limit under (b)(1). The excluded time period will run only from the time the prosecution dismisses the charges until the return day as to the subsequent charge. For example, if the return day as to certain charges is January 1 and those charges are dismissed by the prosecution six months later, followed by a new complaint or indictment for the same offenses, as to which the return day is August 1, the prosecution has until February 1 to bring the defendant to trial. The one-month period during which no charges were pending is excluded, but the previous six months during which charges were outstanding is counted against the Commonwealth. See Commonwealth v. Gove
, 366 Mass. 351, 359 (1974).

(b)(2)(E). Under this subdivision, reasonable delay where no motion for severance has been granted and the time for trial has not run as to the joined defendant shall be an excluded period. See Commonwealth v. Beckett
, 373 Mass. 329 (1977); Commonwealth v. Carr
, 3 Mass.App. 654, 656-57 (1975). Situations may arise where the period of delay could prove unreasonable; for example, where the joined defendant is indefinitely unavailable for trial or cannot be brought into custody. In such a situation it is not intended that the trial of the defendant presently in custody pending trial be deferred.

(b)(2)(F). This subdivision excludes delay resulting from a continuance granted upon a finding that “the ends of justice ... outweigh the best interests of the public and the defendant in a speedy trial.” It is implicit that (b)(2)(F) does not countenance an after-the-fact appraisal of the causes of delay by a reviewing court; in order to be excluded, the delay must have been the subject of a formal continuance. This does not, of course, preclude the appellate court from considering whether the grant or denial of a continuance constituted an abuse of discretion. See Mass.R.Crim.P. 10. Since only a judge may grant a continuance under Rule 10, the Commonwealth’s failure to bring a case to trial without such a continuance, or its unilateral rescheduling a case to a later trial list, see G.L. c. 278, § 1
, will not toll the speedy trial clock under this subsection. Commonwealth v. Spaulding
, 411 Mass. 503, 508-10 (1992). (failure of defendant to object to delay in scheduling did not toll period); Barry v. Commonwealth
, 390 Mass. 285, 296 n. 13 (1983) (Commonwealth’s setting of trial date does not toll period).

Delay which is justified under this subdivision may include that required for the Commonwealth to comply with a discovery order, Commonwealth v. Anderson
, 6 Mass. App. Ct. 492 (1978); that required by newly-appointed counsel to prepare the case, e.g., Commonwealth v. Campbell
, 5 Mass.App.Ct. 571 (1977); or that occasioned by the illness of the defendant, a co-defendant, counsel for the defendant or the Commonwealth, or the judge. Commonwealth v. Campbell, supra.

(b)(2)(H). The same principle which governs in subdivision (b)(2)(G) operates to exclude the time between which a plea is tendered and accepted by the court under Mass.R.Crim.P. 12(c)(5) and the time at which it is withdrawn by the defendant pursuant to Mass.R.Crim.P. 12(d). It is intended that the excluded period run from the date the plea of guilty is first offered and accepted until the date the court permits withdrawal of the plea.

Subdivision (b)(3). The provision as to excluded periods is contrary to G.L. c. 4, § 7
and Mass.R.Crim.P. 46(a), which state that the day on which a limited period commences shall be excluded from the computation. This subdivision is in other respects consistent with prior law. See Commonwealth v. Daggett
, 369 Mass. 790, 792 n.1 (1976). See ABA Standards Relating to Speedy Trial § 3.2 (Approved Draft, 1968), Standard 12-3.2 (2d ed., Approved Draft, 1978).

Subdivision (c). It is possible, although unusual, that a delay of less than twelve months could be deemed prejudicial and therefore violative of a defendant’s right to be tried with reasonable dispatch. Under this subdivision a dismissal of charges would be warranted in such a situation.

For those defendants who are not yet entitled to the mandatory dismissal upon motion under subdivision (b)(1), this subdivision states the standard by which an allegation of a denial of a speedy trial may nonetheless be judged: it is a statement of the fundamental constitutional guarantee. The twelve-month rule sets a standard which is quantitative and whose limits are easily determined, whereas the constitutional standard is a relative qualitative concept demanding that the severity of the denial of its protection to a defendant be dependent upon the facts of his case.

This subdivision puts the constitutional standard into manageable operational terms. Four factors were mentioned by the United States Supreme Court in Barker as among those to be considered: the length of delay, the reason for delay, the resulting prejudice to the defendant, and the assertion of the right by the defendant. This subdivision isolates two essential factors which are the substance of the constitutional protection. These are unreasonable prosecutorial delay and resulting prejudice to the defendant.

Subdivision (c)(1) states that only prosecutorial delay is within the scope of the relief afforded by this subdivision. This protection is compatible with the constitutional protection. Commonwealth v. Lauria
, 359 Mass. 168 (1971); Commonwealth v. Thomas
, 353 Mass. 429 (1967). This subdivision requires the defendant to establish first that the delay he has endured is unreasonable and secondly that it was caused by the prosecutor. If the delay is of that nature, the defendant has conclusively established one of the two requisites to a finding that his motion to dismiss the charges is to be granted.

There is no disagreement with the proposition that only an unreasonable delay is prohibited by the Constitution and that what is unreasonable depends upon the peculiar facts of each case. For example, the amount of time that a prosecutor needs to prepare a case in which several defendants have been joined for trial is normally greater than the time needed to prepare for the trial of a single defendant. See Commonwealth v. Dominico
, 1 Mass.App.Ct. 693 (1974).

Subdivision (c)(2) establishes the second element which the defendant must show to support his motion: that he has been prejudiced by the delay. Prejudice in the context of this subdivision is not restricted to prejudice to the preparation or presentation of the defense. The Supreme Court in Barker v. Wingo, supra, listed three distinct functions served by the prohibition against unreasonable delay: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532.

If the defendant is able to show that deliberate, unreasonable prosecutorial delay has operated to his prejudice, the appropriate sanction is dismissal of the charges with prejudice to the Commonwealth. Support for such a sanction is even stronger when imposed for constitutional reasons. The Supreme Court in Strunk v. United States
, 412 U.S. 434 (1973), declared that dismissal with prejudice was the only permissible remedy for violation of the constitutional speedy trial protection.

The judge is always given discretion in his determination of whether the defendant has been prejudiced to an extent that will require dismissal of the indictment due to prosecutorial delay.

The statement in subdivision (d)(1) that prisoners are entitled to all the safeguards of a defendant whose liberty is not similarly impaired recognizes that a prisoner does not by reason of his status alone lose the protection of the Constitution or of this rule. It is not intended to declare, however, that all substantive rights of an unimprisoned defendant are to be accorded a prisoner. The same rights can apply with equal force in different circumstances and impose differing duties on the Commonwealth. A separate subdivision is devoted to prisoners’ speedy trial rights because the substance of those rights is different from that of other accused persons. Imprisonment necessarily affects both the duty which the Commonwealth has to deliver a defendant to trial and the nature of the prejudice that might result from a delayed trial.

Subdivision (d)(2) extends to defendants incarcerated within the Commonwealth for other crimes the same speedy trial rights guaranteed to other defendants by subdivisions (b)(1) and (c).

Subdivision (d)(3) is largely a restatement of G.L. c. 277, § 72A, which is applied to prisoners incarcerated “outside” the Commonwealth. This is to be read to include prisoners within federal custody, although physically present within Massachusetts.

The Constitution has been interpreted to require of the prosecutor only that which he is reasonably able to accomplish. Commonwealth v. McGrath
, 348 Mass. 748 (1965). Where a defendant is imprisoned in a foreign jurisdiction and his extradition is impeded--whether by his own opposition or by that of the executive of the incarcerating jurisdiction--it would be unfair to attribute the delay in bringing the defendant to trial to the Commonwealth if it had made all reasonable efforts to secure the defendant’s presence. It would be equally unfair to require the Commonwealth to guarantee trial within a specified time limit.

There is disagreement among jurisdictions as to what the speedy trial provision of the Constitution requires of a state seeking to obtain the presence of a prisoner incarcerated in another jurisdiction, although it is clear that where a defendant’s presence cannot be obtained because the incarcerating state refuses to deliver him, there is no denial of the defendant’s constitutional right to a speedy trial. See ABA Standards Relating to Speedy Trial, § 3.1, comment at 31 (Approved Draft, 1968). It is also clear that Massachusetts is one of the many states to require the prosecution to use all reasonable efforts to obtain the presence of a foreign prisoner for trial upon pending charges, although this position is not universally accepted. Commonwealth v. Green
, 353 Mass. 687, 690 (1968).

Uniform acts dealing with extradition have been adopted by many states. The Agreement On Detainers, G.L. c. 276, App. §§ 1-1 et seq., gives prisoners the right to have a trial within one hundred eighty days of their delivery to the jurisdiction where charges are pending. This statute, which has been adopted by thirty-two jurisdictions, gives substance to the rights of prisoners and is to be read as a complement to this rule. The Uniform Criminal Extradition Act, G.L. c. 276, §§ 11-20R
, which has been adopted by forty-seven jurisdictions, establishes procedures for orderly extradition; it sets out proper procedures for a request for delivery, the arrest of the alleged criminal, and his delivery to the requesting state. Section 20G of this statute, however, still affords governors the discretion to refuse delivery of prisoners.

Massachusetts courts have required the Commonwealth to use due diligence in seeking to bring a foreign prisoner to trial. In light of the legal limitations of rendition this is a fair standard. This rule attempts to put the diligence standard in operational terms. The speedy trial rights of a foreign prisoner are defined under this rule as follows: the Commonwealth must diligently notify a foreign prisoner of pending charges and must promptly seek to obtain his presence for trial; if the Commonwealth is dilatory in either filing a detainer or seeking to obtain the defendant’s presence and the prisoner is prejudiced by the delay, the charges must be dismissed. The defendant is given the right to make a demand, although the demand under this rule does not affect the Commonwealth’s duty to obtain the defendant’s presence. The Commonwealth must use due diligence whether or not a demand has been made. However, the demand is relevant to a determination of the prejudice incurred by the defendant, and under the Agreement on Detainers, a demand entitles a defendant to a trial within one hundred eighty days of his delivery.

Subdivision (e). In Commonwealth v. Gove
, 1 Mass.App. 614 (1973), aff’d, 366 Mass. 351 (1974), it was held that a defendant did not have the right to be simultaneously charged with all the offenses which might have been committed in the course of a single act or a closely related series of acts. One result is that a dismissal of the charge of one of a number of related offenses on denial of speedy trial grounds would not bar the Commonwealth from charging the defendant with another of the related offenses. A second result is that if a significant amount of time had elapsed between the filing of charges of two related offenses, and the earlier charge was dismissed because the twelve-month limit of this rule had passed, the Commonwealth could proceed to trial on the later charge. Subdivision (e) effectively vitiates the Gove decision.

Standard 12-4.1 of the ABA Standards Relating to Speedy Trial (2d ed., Approved Draft, 1978), states that if a charge is dismissed on speedy trial grounds “[s]uch discharge should forever bar prosecution for the offense charged and for any other offense required to be joined with that offense.”

the dismissal of a complaint in the District Court on the ground that the defendant has been denied his right to a speedy trial is a bar to any subsequent prosecution for the same offense whether by later complaint ... or by an indictment....

Commonwealth v. Ludwig
, 370 Mass. 31, 35 (1976) (emphasis supplied). Accord Commonwealth v. Fields
, 371 Mass. 274, 275 (1976) (dismissal of complaint in District Court on speedy trial grounds bar to subsequent prosecution of same offense by indictment in Superior Court). While agreeing with the ABA Standards insofar as holding dismissal to constitute an absolute discharge of the prosecution of the offense charged, the Ludwig court did not reach the issue of whether such a discharge was to encompass other offenses.

Subdivision (e) states that a dismissal of any charge ordered pursuant to Rule 36 “shall apply to all related offenses.” Offenses are related when they

are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.

Mass.R.Crim.P. 2(b)(14); 9(a)(1). This subdivision expands the principle of ABA Standard 12-4.1 further, mandating that the dismissal shall be not only as to charges required to be joined with that dismissed, but also as to any charges which could have been joined under Mass.R.Crim.P. 9(a)(2).

This position is advanced in the interests of fairness to a defendant. Without such a provision, a defendant could be subjected to harassment by a prosecutor who might essentially relitigate the same issues he was barred from litigating for failure to accord the defendant his rights under this rule.

Subdivision (f). Under this rule, the respective clerks are to have the burden of periodically informing the first justice of each District Court division and the Administrative Justice of the Superior Court Department of cases which have been pending longer than six months.